Opinion
2020–00283 Index No. 28743/10
12-27-2023
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., plaintiff, v. Alexander BUENO, respondent, et al.,defendants; Kings WB5, LLC, nonparty-appellant.
Wolf & Associates, PLLC, Brooklyn, NY (Martin Wolf of counsel), for nonparty—appellant. Auciello Law Group, P.C. (Gail M. Blaise, P.C., Garden City, NY, of counsel), for respondent.
Wolf & Associates, PLLC, Brooklyn, NY (Martin Wolf of counsel), for nonparty—appellant.
Auciello Law Group, P.C. (Gail M. Blaise, P.C., Garden City, NY, of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LARA J. GENOVESI, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER In an action to foreclose a mortgage, nonparty Kings WB5, LLC, appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated October 10, 2019. The order, insofar as appealed from, denied the plaintiff's motion to reject a referee's report made after a hearing to determine the validity of service of process on the defendant, and granted that branch of the cross-motion of the defendant Alexander Bueno which was to confirm the referee's report.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion to reject the referee's report is granted, that branch of the cross-motion of the defendant Alexander Bueno which was to confirm the referee's report is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
Contrary to the contention of the defendant Alexander Bueno (hereinafter the defendant), nonparty Kings WB5, as the successful bidder at the mortgage foreclosure sale, has an interest in the subject property and, thus, is aggrieved by the order confirming the referee's report finding lack of proper service, and, therefore, has standing to appeal from the order pursuant to CPLR 5511 (see Mixon v. TBV, Inc., 76 A.D.3d 144, 157 n. 2, 904 N.Y.S.2d 132 ["In rare instances a person against whom no relief was sought may be aggrieved by the granting of relief to an adversary against a party with whom he or she is united in interest"]; Tymon v. Linoki, 23 A.D.2d 663, 664, 256 N.Y.S.2d 862, mod 16 N.Y.2d 293, 266 N.Y.S.2d 357, 213 N.E.2d 661 ; cf. Reich v. Realty Quest Brokerage Corp., 35 A.D.3d 425, 426, 824 N.Y.S.2d 717 ; Prudential Sav. Bank v. Panchar Realty Corp., 72 A.D.2d 792, 793, 421 N.Y.S.2d 619 ).
The plaintiff commenced this action in 2010 against the defendant, among others, to foreclose a mortgage on certain real property located in Brooklyn. The defendant did not answer, and the plaintiff was granted leave to enter a default judgment against the defendant and an order of reference. The Supreme Court granted the plaintiff's unopposed motion for a judgment of foreclosure and sale in April 2016, and granted the plaintiff's motion for resettlement of the judgment of foreclosure and sale in October 2017. The subject property was sold to a nonparty, Kings WB5, LLC (hereinafter the nonparty), at a foreclosure sale in January 2018. In March 2018, the defendant moved, inter alia, to dismiss the action insofar as asserted against him for lack of personal jurisdiction or for a traverse hearing. The court referred the issue of whether the defendant was validly served with process to a referee to hear and report. After a hearing to determine the validity of service of process, the referee issued a report recommending that the court find that service of process pursuant to CPLR 308(2) was not validly effected on the defendant.
Thereafter, the plaintiff moved to reject the referee's report, and the defendant cross-moved, inter alia, to confirm the referee's report. In an order dated October 10, 2019, the Supreme Court, inter alia, denied the plaintiff's motion to reject the referee's report, and granted that branch of the defendant's cross-motion which was to confirm the referee's report. The nonparty appeals from that portion of the order dated October 10, 2019.
"At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence" ( Bank of Am., N.A. v. Genzler, 188 A.D.3d 634, 635, 133 N.Y.S.3d 645 [internal quotation marks omitted]; see Bank of Am., N.A. v. Greenfeld, 203 A.D.3d 1003, 1003, 162 N.Y.S.3d 746 ). "As a general rule, courts will not disturb the findings of a referee as long as they are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility" ( U.S. Bank N.A. v. Kaur, 177 A.D.3d 1016, 1017, 113 N.Y.S.3d 169 [internal quotation marks omitted]; see Bank of Am., N.A. v. Greenfeld, 203 A.D.3d at 1003–1004, 162 N.Y.S.3d 746 ).
Here, the referee's recommendation that service was not validly effected on the defendant pursuant to CPLR 308(2) was not substantially supported by the record. The process server's hearing testimony and the affidavit of service established, prima facie, that the defendant was served with the summons and complaint pursuant to the delivery and mailing requirements set forth in CPLR 308(2) (see Bank of Am., N.A. v. Greenfeld, 203 A.D.3d at 1004, 162 N.Y.S.3d 746 ; State of New York v. Konikov, 182 A.D.3d 750, 752–753, 122 N.Y.S.3d 719 ). Where, as here, a process server is barred from entry into a defendant's dwelling, " ‘the outer bounds of the actual dwelling place must be deemed to extend to the location at which the process server's progress is arrested’ " ( Citibank, N.A. v. Balsamo, 144 A.D.3d 964, 965, 41 N.Y.S.3d 744, quoting F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797, 396 N.Y.S.2d 343, 364 N.E.2d 1115 ). As such, the defendant failed to rebut the plaintiff's prima facie showing (see Makmudova v. Cohen, 216 A.D.3d 935, 937, 189 N.Y.S.3d 633 ; Flanagan v. Delaney, 194 A.D.3d 694, 148 N.Y.S.3d 220 ).
Accordingly, we reverse the order insofar as appealed from, deny that branch of the defendant's cross-motion which was to confirm the referee's report, grant the plaintiff's motion to reject the referee's report, and remit the matter to the Supreme Court, Kings County, for further proceedings consistent herewith.
CONNOLLY, J.P., GENOVESI, WARHIT and WAN, JJ., concur.